[Senate Hearing 113-852]
[From the U.S. Government Publishing Office]
S. Hrg. 113-852
NOMINATION OF SHARON BLOCK TO SERVE AS A MEMBER OF THE NATIONAL LABOR
RELATIONS BOARD
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
ON
NOMINATION OF SHARON BLOCK TO SERVE AS A MEMBER OF THE NATIONAL LABOR
RELATIONS BOARD
__________
SEPTEMBER 9, 2014
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina RAND PAUL, Kentucky
AL FRANKEN, Minnesota ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts
Derek Miller, Staff Director
Lauren McFerran, Deputy Staff Director and Chief Counsel
David P. Cleary, Republican Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, SEPTEMBER 9, 2014
Page
Committee Members
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, opening statement................................... 2
Murphy, Hon. Christopher, a U.S. Senator from the State of
Connecticut.................................................... 9
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 10
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 12
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina. 14
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 16
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts.................................................. 18
Witness
Block, Sharon, nominee for Member, National Labor Relations
Board, Washington, DC.......................................... 4
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Response to questions of Senator Alexander, Senator Isakson,
and Senator Scott by Sharon Block.......................... 22
(iii)
NOMINATION OF SHARON BLOCK TO SERVE AS A MEMBER OF THE NATIONAL LABOR
RELATIONS BOARD
----------
TUESDAY, SEPTEMBER 9, 2014
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room
SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Alexander, Casey, Whitehouse,
Murphy, Warren, Isakson, Hatch, and Scott.
Opening Statement of Senator Harkin
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order.
We are holding this hearing today because at the end of the
year, there will be a vacancy at the National Labor Relations
Board resulting from the departure of Member Nancy Schiffer. I
would like to take a moment first to thank Ms. Schiffer for her
service. The President has nominated an exceptionally well
qualified and dedicated public servant, Ms. Sharon Block, to
fill the opening, and I look forward to her speedy
confirmation.
A little over a year ago, for the first time in over a
decade, we were able to confirm a fully functional five-member
NLRB. It is my hope that by promptly confirming Ms. Block's
nomination to fill the looming vacancy we can continue the
progress that has been made and begin a new era where orderly
transitions are the norm, not the exception.
The NLRB is an agency that is absolutely critical to our
country, to our economy, and to our middle class. Over 75 years
ago, Congress enacted the National Labor Relations Act
guaranteeing American workers the right to form and join a
union and bargain for a better life. For both union and non-
union workers alike, the Act provides essential protections. It
gives workers a voice in the workplace, allowing them to join
together and speak up for fair wages, good benefits, and safe
working conditions. These rights ensure that the people who do
the real work in this country see the benefits when our economy
grows.
The National Labor Relations Board is the guardian of these
fundamental rights. Workers themselves cannot enforce the NLRA.
The Board is the only place workers can go if they have been
treated unfairly or denied the basic protections that the law
provides. In the past 10 years, the NLRB has secured
opportunities for reinstatement for 22,544 employees who were
unjustly fired. It has also recovered more than $1 billion on
behalf of workers whose rights were violated.
The Board doesn't just protect the rights of workers and
unions. It also provides relief and remedies to our Nation's
employers. The Board is an employer's only recourse if, for
example, a union commences a wildcat strike or refuses to
bargain in good faith during negotiations.
The NLRB also helps numerous businesses resolve disputes
efficiently. By preventing labor disputes that could disrupt
our economy, the work that the Board does is vital to every
worker and every business across the Nation.
During our last NLRB hearing, one of the nominees described
himself as being not pro-worker or pro-union or pro-employer,
but instead he said he was pro-Act, pro-NLRA. I believe any
nominee that comes before this committee should be pro-Act, and
I am confident that Ms. Block, with her labor and employment
law expertise, her expertise of having worked on this committee
and on the Board, will be such a person. Two of the qualities
that have always impressed me about Ms. Block are her
commitment to public service and her ability and willingness to
work with Democrats, Republicans, or whomever as long as they
are committed to upholding and enforcing our Nation's labor and
employment laws.
Much has been made by some of my colleagues about Ms.
Block's previous service at the Board as a recess appointee.
During that period, I watched as she courageously fulfilled the
duties she had sworn to carry out as a member of the Board,
even in the face of constant political interference and even
some personal attacks. Those criticisms and attacks were unfair
then and they are unfair now.
Ms. Block conducted herself appropriately at all times
during her previous service and instead of attacks, she
deserves our appreciation because without her service, the
Board would have lacked a functioning quorum and would have had
to shut down. We would be hard pressed to find a more qualified
nominee than Sharon Block.
Keeping the NLRB fully staffed and able to do its work will
send a strong message to the American people that yes,
Washington can work, and our government can function. It will
give certainty to businesses and assure workers that someone is
looking out for their rights and ready and able to enforce our
Nation's labor laws. I look forward to hearing Ms. Block's
testimony today and to moving her nomination expeditiously
through this committee and through the Senate.
I'll turn now to Senator Alexander.
Opening Statement of Senator Alexander
Senator Alexander. Thanks, Senator Harkin.
Ms. Block, welcome. It's good to see you.
As we meet here today, the National Labor Relations Board
has hundreds of decisions that it must re-decide, 436 decisions
made between January 2012 and July 2013 that were made invalid
by the U.S. Supreme Court's unanimous ruling this summer. This
enormous load of cases to re-decide is no surprise to me, and
it shouldn't be a surprise to anybody.
In December 2011, 47 Republican Senators sent a letter to
the President urging him not to go around Congress with his
appointments to the NLRB. The President ignored our request and
appointed Ms. Block along with two other individuals to the
NLRB in January 2012. He wasn't just ignoring our opinion. The
President ignored the Constitution. He used the recess
appointment power at a time when the Senate wasn't in recess.
That's not just my opinion. It's a fact.
The D.C. Circuit said the appointments, including Ms.
Block's, were unconstitutional. The Fourth Circuit Court of
Appeals weighed in and said the recess appointment of Ms. Block
violated the Constitution. This summer, the Supreme Court
unanimously said it was unconstitutional. The only people who
seem not to realize that were the President and the nominees
themselves, including Ms. Block. Her appointment, along with
Richard Griffin, is why the NLRB has before it today 436
decisions that must be re-decided.
This has created a lot of wasted time and money, a great
deal of extra work, confusion for workers, confusion for
employers, who count on the Board to properly and fairly
adjudicate their disputes. The Board's own website says it has
a, ``daily impact on the way America's companies, industries,
and unions conduct business.''
The process for re-deciding the cases will extend the legal
expenses and uncertainty for hundreds of employees, employers,
and unions who are party to the case. Instead of being able to
focus on strengthening and growing a business, these folks are
trapped in NLRB limbo.
Ms. Block is here today to be considered to serve on the
Board, this time proposed in the constitutional way. She has
been nominated for a term that would begin in December, a
little over 3 months from now. The President has submitted her
nomination with adequate opportunity for Congress to consider
that nomination. That's a good start. But I'm concerned that
the American businesses and workers who count on the NLRB for
stability are being asked to rely on the judgment of someone
who chose instead to create confusion and instability.
Ms. Block served on this Board under an unconstitutional
recess appointment. She stayed in that position 18 months. She
participated in hundreds of decisions. I said then that her
actions revealed a troubling lack of respect for the
Constitution's separation of powers and the Senate's
constitutional role to advise and consent.
Putting that aside, I am concerned, too, that in her time
on the Board, Ms. Block has demonstrated a willingness to tilt
the playing field toward organized labor. I'll have some
questions about that when my time comes. This nominee would not
be the first to tilt the playing field of the NLRB one way or
the other. The NLRB has, in my opinion, become more partisan in
recent decades. Policy reversals and dramatic shifts are
becoming regular expectations with each new administration.
So I intend, with Senator McConnell of Kentucky, next week
to introduce legislation to restore the National Labor
Relations Board to its intended role of acting as an umpire and
applying the law fairly and impartially instead of acting as an
advocate for one side over the other. That's how important I
think the Board is and how important I think it is that it be a
stabilizing force.
Ms. Block, I thank you for being here. I look forward to
hearing your thoughts and having a chance to ask some
questions.
The Chairman. Thank you, Senator Alexander.
We welcome you, Ms. Block, and for purposes of
introduction, I'll yield to Senator Murphy.
Senator Murphy. Thank you, Mr. Chairman, and thank you,
Senator Alexander, for holding this hearing. I'm proud to be
back again to introduce a dedicated public servant from
Westport, CT, whose parents made the trip down from Connecticut
to see their daughter's nomination considered by this
committee.
I've had the pleasure of getting to know Ms. Block during
her previous confirmation process but also through her work as
a senior counselor to Secretary Perez at the Department of
Labor where she worked very hard on getting long-term
unemployed Americans back to work and helping at-risk youth
develop the job skills necessary to succeed in today's economy.
We thank her for her great work there.
Many on this committee, of course, will remember Ms. Block
from her time as the senior labor and employment counsel for
this committee under Chairman Kennedy. She did a lot of good
work there, but, most notably, helped pass a crucial piece of
legislation that will ensure fairness in the workplace and pay
equity for women, the Lilly Ledbetter Fair Pay Act.
As you know, Mr. Chairman, the NLRB is the most important
safeguard for both employees and employers that we have today.
I'm glad that we're considering such a fair and diligent member
to serve on the NLRB. Ms. Block has served with integrity as a
Board member since January 2012, where at her last confirmation
hearing, even many of my Republican colleagues who opposed her
nomination noted her long career in public service and her
stellar qualifications to be an NLRB Board member.
We welcome you back to the committee and look forward to
your testimony.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murphy.
Welcome again, Ms. Block, back to the place where you--I
think you almost started here, if I'm not mistaken, on this
committee. Your statement will be made a part of the record in
its entirety. Please proceed as you so desire.
STATEMENT OF SHARON BLOCK, NOMINEE FOR MEMBER, NATIONAL LABOR
RELATIONS BOARD, WASHINGTON, DC
Ms. Block. Thank you so much, Chairman Harkin, Senator
Alexander, Senator Murphy, members of the committee. I am
honored and humbled to appear before you again as a nominee for
the National Labor Relations Board.
The Board, for the first time in a decade, is operating
under regular order with five confirmed members and only one
vacancy on the horizon. As a result, the Board has a chance to
undergo an orderly transition from one Board to the next,
without the uncertainty and disruption that comes with multiple
Board member vacancies that in the recent past have extended
for long periods of time and threatened the existence of a
quorum. This allows the Board members and their staffs to
concentrate on doing the public's work.
I have spent the largest part of my career as a career
civil servant with the Board. I started my career in private
practice representing management in employment cases at Steptoe
and Johnson, but I came to the Board when my career was still
in its formative stage. I had the privilege to serve Boards in
both Democratic and Republican administrations.
My service as a career attorney culminated with my position
on the staff of former Republican Chairman Bob Battista. When I
served as senior counsel to Chairman Battista, I always
appreciated the frank case discussions and respect he showed
the dedicated career attorneys on his staff. As a former career
attorney, I would never underestimate the value of the
expertise of the Agency's exceptional career staff.
As Senator Harkin suggested, since the last time I appeared
before you, the Supreme Court has issued its decision in Noel
Canning. Although my expertise is in labor law, not
constitutional law, as a lawyer, I assure you I have an
unwavering respect for our judicial process in resolving
difficult legal issues like those involved in that case. So I
have a keen appreciation of the process that brought us to this
point and the utmost gratitude for the opportunity to sit
before you again today as a nominee.
I am also grateful to this committee and the Senate for
confirming a full Board. As someone who has spent the better
part of my career at the Board, I can unreservedly say that it
was a good day for the Board when Nancy Schiffer and Kent
Hirozawa began the process that culminated in their
confirmation with Chairman Pearce and Members Johnson and
Miscamarra.
I am especially grateful to Member Schiffer who came out of
retirement to answer the call to public service and who has so
ably led the staff that I had had the honor to work with.
Anyone who cares about the Board and the efficient functioning
of government on either the labor or management side of the
Board's cases must agree that a fully confirmed, five-member
Board is the ideal, as the statute prescribes.
If fortunate enough to be confirmed for a seat on the
Board, I would bring with me passion for the kinds of cases
that make up the heart of the Board's docket, the cases where
the parties have no interest in making law or grabbing
headlines. In such cases the Board, as a neutral adjudicator,
brings resolution to parties who just want to have their voices
heard and their views fairly considered. Throughout my
different tenures at the Board, these are the cases that have
dominated the Board's docket and which I have found the most
rewarding.
The reality of my time on the Board, as with most Board
members, is that the majority of cases that I participated in
were unanimous decisions that applied longstanding precedent.
They are the cases where we make a difference in people's lives
by getting them their jobs back after they have been unlawfully
discharged or facilitating the bargaining process by allowing
companies to move forward running their businesses when a
genuine impasse in negotiations has been reached. I remain
dedicated to moving these cases as fairly and efficiently as
possible.
I would also bring with me lessons learned in this room
during my tenure on the committee's staff. When I was here last
year, I shared the important lessons that I learned from
participating in this committee's work on the MINER Act. This
committee continues a strong tradition of working across party
lines to pass significant bipartisan legislation. The
committee's great accomplishments are examples that I would
carry with me to the Board of what good work for the American
people can be achieved when we work amicably across the aisle.
In closing, I would like to thank Secretary Perez for
having given me the opportunity over the past year to continue
to serve the public in this administration. He is a remarkable
leader from whom I have learned so much.
And I would like to thank my family that is here with me
for all their love and support during the ups and downs since
they last sat in those seats. Since I was here last year, my
children have graduated from high school. So my son, Eli, who
started at Oberlin College just a few weeks ago, is not here
today. But my daughter, Charlotte, who will be starting at
University of Chicago in a couple of weeks, is here, with my
husband, Kevin, my parents, Lois and Joseph Block, my uncle,
Michael Fuchs, and my aunt, Froma Sandler.
Thank you for the opportunity to offer these remarks. I
welcome your questions.
The Chairman. Thank you very much. I'm sorry about the
sound system. I don't know what's going on here, but I think
it's a little bit better now.
First of all, we welcome you and all your family members
who are here. Welcome to the Senate and the Senate Committee on
Health, Education, Labor, and Pensions.
We'll start a round of 5-minute questions.
First of all, Ms. Block, some of my colleagues, in my
opinion, I believe, have unfairly criticized your previous
service as a member of the Board. If anything, I believe that
they should be praising your commitment to public service.
I know the last few years have been a bit of an ordeal for
you and your family with multiple nominations, public
criticism, a lot of uncertainty, all of which was due to
factors entirely beyond your control. You have done nothing but
answer a call to public service and do your best to do your
duty, and I commend you for your continued willingness to serve
after all that you've been through.
You mentioned your previous service at the Board and the
Supreme Court's decision in Noel Canning in your opening
statement. I'd like to give you the opportunity to share with
the committee the thinking that went into your decision to
continue to serve when the President's recess appointment
authority was challenged in Federal court. I'm also interested
in learning more about your decision to continue to issue case
decisions at that time. If you could respond to that and tell
us about your thinking at that time, I would appreciate it.
Ms. Block. Thank you, Senator. Thank you for the question
and I appreciate the opportunity to continue this conversation
that we started last summer on this issue. If I start at the
beginning, I was asked whether I was willing to be nominated,
and I was honored to be asked, and I made a commitment in
accepting the opportunity to be nominated. I made a commitment
to serve, and I took that commitment very seriously.
When I got to the Board, I then took an oath to serve to
the best of my ability. And, again, I took that oath very
seriously. I made my commitment and took that oath in the
context of understanding that obligations under the National
Labor Relations Act aren't suspended during disputes over
composition of the Board.
While I was aware, of course, of the disputes over the
Board's composition during my service, I was also aware of the
system in place to resolve those kinds of disputes. I have a
deep respect for the judiciary and that process by which the
Federal courts resolve constitutional questions subject,
obviously, ultimately to Supreme Court review.
During my tenure, the Supreme Court had not made that
ultimate decision. As you noted, the decision came just this
past summer. But the process of review moving toward the
Supreme Court's resolution was ongoing. When the D.C. Circuit
issued its decision in Noel Canning, again, that process
continued. The solicitor general filed a Petition for
Certiorari. The court granted that petition. So we knew we were
moving toward the ultimate resolution of the question. That was
true during the entirety of my service.
When I looked at the importance to me of the oath that I
had taken to serve and to serve to the best of my ability, the
fact that I knew that the process was underway to ultimately
resolve the issue, I thought the best way to honor that oath
was to continue to serve and to ensure that that process that
the Constitution prescribed for resolving constitutional
questions was in place and would move toward that resolution.
The Chairman. And isn't it true at that time that there was
a split in the different circuits on this issue?
Ms. Block. In fact, as the D.C. Circuit noted in its
decision in Noel Canning that there had been, to the extent
that the issues raised in that case had been addressed at all
by other circuits--that there was a split in the reasoning in
those cases.
The Chairman. So here you are. You're on the Board. The
D.C. Circuit issues one opinion. There are opinions in other
circuits that contradict that, and, of course, those are the
times when, hopefully, the Supreme Court then takes it up and
resolves those differences, which it did, but not until this
summer.
So let me understand this. While you took an oath of office
to serve and to fulfill your oath, your service was not
circumvented by just the D.C. Circuit, because you've got to
look to another circuit for just the opposite result.
Therefore, it seems to me that in those cases, you have an
obligation. Any public servant has an obligation to continue to
serve and to fulfill their oath of office until such time as
this is resolved by the Supreme Court.
That's why I have said that I think it has been unfair for
people to say that you should have resigned simply because of
one circuit, or you can't issue decisions. The wheels of
government and other entities go on regardless of whether one
court says this--there's always a final adjudication, whether
it's an appeal process in civil or criminal courts, and until
that final adjudication is made, people are not denied their
right or their obligation to fulfill their contractual
agreements or their, in this case, oaths of office.
That's why I've always felt that it was just not fair to
criticize you for fulfilling what was your oath of office in
the face of two disparate rulings by circuit courts. Now,
today, obviously, that's different because the Supreme Court
has made the decision on that.
Thank you, Ms. Block.
Senator Alexander.
Senator Alexander. Ms. Block, during an organizing
campaign, the current law requires employers to provide union
organizers with a list of employee names and home addresses.
This is called the Excelsior List. For example, in Chattanooga,
TN, we have an ongoing organizing effort at the Volkswagen
plant. In a secret ballot election last February, the majority
of employees rejected the United Auto Workers bid to unionize
the plant. The vote was 712 to 626.
The NLRB is in the middle of a regulatory effort to expand
the requirement that more information about these employees be
given to the organizing union. They are proposing including the
telephone number of the employee, the email address, the
employee's work location, the shifts, the job classifications.
It seems like everything but attaching a GPS to the employee.
So my question is if you were one of the 712 Volkswagen
employees who voted no, that you didn't want to organize the
union at the Chattanooga plant, would you want your boss to
hand over to the union your email address to the union
organizers?
Ms. Block. Senator, thank you for the question. I think
what you are alluding to is the proposed rule that's currently
pending with the Board that does address this issue over
information that needs to be provided. As you mentioned, it's
now currently----
Senator Alexander. No. What I'm asking is if you were one
of those who voted no, you didn't want the union to organize,
would you want the NLRB to order your email address turned over
to the union organizers?
Ms. Block. My understanding of the way that the process
works is that, as you pointed out, the information now, which
is name and home address, is turned over prior to the election
when, presumably, employees are in the position of making a
decision about how they want to vote in the election.
Senator Alexander. And the proposal is to expand that, but
I'm asking would you want your work location, your shift, your
job classification, all that information to be turned over to
the union organizers prior to the election?
Ms. Block. My understanding is that that is part of the
proposal that's currently pending before the Board, a proposal
that was made after I left the Board. I don't think it's
appropriate for me to voice an opinion on what the law should
be or whether that particular provision should be----
Senator Alexander. I'm not asking what the law should be.
I'm just asking whether you think, if you were an employee, you
would like to have all that information turned over.
Ms. Block. I think a lot of people know that information
about employees. I'm trying to be appropriate about the kinds
of positions when there's been issue--the answer to that
question necessarily implicates an issue that there is a
possibility if I'm fortunate enough to be confirmed that I
would have to consider. I do understand, although I wasn't on
the Board when the latest proposed rule was----
Senator Alexander. So you don't want to say whether you
would like to have all that information turned over to the
union organizer if you were an employee.
Ms. Block. I just think it's more appropriate to be sure
that were I to return to the Board that I have the benefit of
an open mind in deliberations with my colleagues about that.
Senator Alexander. Would you at least insist that if this
rule goes forward that employees have an opportunity to opt out
of this? If an employee says, ``Look, I want some privacy. I
don't want to be bothered at home. They already have my name
and home address, but I don't want them to have my telephone
number, my email, my work location, my shift, my job
classification. I'd like to opt out of that,'' do you think
that would be a reasonable right for an employee to have?
Ms. Block. Although I haven't been privy to the comments
that have been submitted pursuant to the current proposal, I
would imagine that issue is addressed in the comments. And if I
have the opportunity to be at the Board and be in a position to
consider that issue and consider comments raised, I can assure
you I would take those comments very seriously as part of the
deliberative process, consider the reasons why a commenter made
that argument, and deliberate with my colleagues about the best
way to address the concerns raised or the suggestions made in
the comments.
Senator Alexander. Thank you, Mr. Chairman.
The Chairman. Thank you. In order, I have Senator Murphy,
Senator Hatch, Senator Casey, Senator Scott, Senator Isakson.
Senator Murphy.
Statement of Senator Murphy
Senator Murphy. Thank you very much.
Good to see you again, Ms. Block.
Thank you, Mr. Chairman, for having this hearing.
One thing I always struggle to understand are two very
different numbers that exist in the workforce today. Polls
consistently show that about 53 percent of workers want to be
part of a union to be able to negotiate for better working
conditions, and yet only 7 percent of workers are represented.
Maybe part of the explanation for that is that there's at
least one study out there that shows that amongst workers who
have openly advocated for a union during an election campaign,
over a period of time after they advocated for the union, one
out of five of those workers ended up getting fired. Another is
that the process of going through the election has gotten
longer and longer in part because of litigation that gets
introduced and disputes that get sent to the NLRB in the middle
of the election process.
I wanted to ask a question about the NLRB regulations that
have started to make a little bit more sense of the election
process. They've been criticized as requiring quickie elections
where--and, as I understand it, this is really about saying to
both employers and employees that if you have disputes, let's
litigate those after the elections rather than hold up the
process.
I wanted to just ask you a very general question about how
you see the implementation of that new set of rules going and
then whether you think that there are additional steps that
need to be taken in order to make sure that that election
happens in a timeframe that is fair, not advantageous to
employers or employees, but that gets the job done with enough
time in order for both sides to make their case, but not so
much time that it becomes a barrier to the majority of workers
who, I would argue, are interested in having a discussion about
organization.
Ms. Block. Thank you for the question, Senator. I have to
start at the same place where I left off with Senator
Alexander. To the extent that the proposal is still pending
before the Board--and, again, it was a proposal that was
promulgated after I left the Board--if I was fortunate enough
to come back, I would certainly take very seriously the
opportunity to review the record, and to the extent that there
are comments in the record that present that point of view or
the point of view that Senator Alexander offered, I would take
those comments very seriously, but also to deliberate with my
colleagues who were on the Board at the time that the proposal
was made to understand the thinking behind the proposal and to
hear all of the Board members' views on what they believe the
objective of the rulemaking was and participate in that
deliberative process to come to a conclusion.
Senator Murphy. Thank you. I'm going to have mercy, given
the state of your microphone.
Mr. Chairman, I would add that the oath that we all take to
serve is a very serious one, and Ms. Block took that oath.
Notwithstanding the controversy in the courts, she was still
bound by the oath that she took to carry out her duties as a
member of the NLRB and to carry out the administration of the
laws of the United States. I'm glad that she took that oath
seriously enough to make sure that she served her country, as
she has during her entire career, even while there was a
legitimate controversy pending before our Federal court system.
I thank you again, Ms. Block, for your perseverance in
pursuit of justice for employers and employees and your
willingness to come back and serve again despite often the
personal nature of this controversy over the last several
years, and I look forward to supporting your nomination.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murphy.
Senator Hatch.
Statement of Senator Hatch
Senator Hatch. Thank you, Mr. Chairman.
Ms. Block, welcome to the committee that you know well. As
you know, there are scores of NLRB decisions that have to be
reconsidered after the Supreme Court's decision in Noel
Canning, including many decisions in which you've participated.
Obviously, there is some question as to your ability to be
impartial as the Board reconsiders these cases. That being the
case, would you be willing to recuse yourself from
participating again in those same cases where you participated
before that the court has found improper?
Ms. Block. Thank you for the question, Senator. I can
assure you that if I was fortunate enough to come back to the
Board and a party was to make a request that I recuse myself
from a case, I would, of course, take that request very
seriously, whether the basis of it was my prior service on the
Board in a case impacted by Noel Canning or for any other
reason. And I would certainly consult with the agency's ethics
officials to determine--to look at those arguments made and to
determine whether recusal was necessary or not. I can assure
you that I would do that.
More generally, though, in thinking about approaching cases
that could come back that I had acted on before in my prior
service, I can certainly pledge that if a recusal motion was
not made, I think even in that respect, I have an obligation to
assure the committee and my colleagues that I would keep an
open mind regarding the decision.
One big factor that would be different in looking at a case
that came back to the Board than the first time is the
deliberations with my colleagues, which I did find during my
prior service to be a very important part of the process of
making a decision. And, obviously, I would have different
colleagues at the Board today, and I happen to have the
privilege of knowing all four continuing Board members, some of
them because I served with them, like Chairman Pearce, and some
I don't know as well. But I know all of them well enough to
know that I have a great deal of respect for their experience,
and I would have a great deal of respect for their opinions in
that deliberative.
Senator Hatch. Ms. Block, I want to ask you about a
particular case you decided when you were on the Board the
first time, which was held in abeyance by the D.C. Circuit
pending the Supreme Court's decision in Noel Canning. The
decision I'm referring to was in the Fresenius case.
To refresh your memory, that case involved allegations of
sexual harassment where a pro-union employee scrawled sexually
obscene, threatening, and harassing statements on union
literature left in a common area in the workplace directed at
women whom he believed might vote to decertify the union.
Naturally, the women employees felt threatened, and they asked
their employer to undertake a sexual harassment investigation,
as the employer was required to do under Title VII of the Civil
Rights Act.
When the culprit was questioned by management, he lied and
denied any involvement. However, later he called a number which
he believed belonged to his union business agent and blurted
out a confession that he was responsible. The only problem was
that he had mistakenly called the company's human resources
department. And when they identified that they were not the
union but the employer's HR department, the culprit denied his
own identity. He was subsequently terminated for lying.
The NLRB, however, ruled that since his conduct occurred
during the union decertification program or campaign, he was
engaging in protected concerted activity and that his
termination violated Section (8)(a)(3) of the National Labor
Relations Act and that he should be reinstated. To me, the
reasoning behind this decision is mind boggling. It puts the
employer in a dilemma of having to choose between violating
Section 8 of the NLRA as you saw it and Title VII of the Civil
Rights Act regarding prompt investigation of sexual harassment
allegations where EEOC guidelines require truthfulness in the
investigation and prompt remedial action.
In your opinion, in these types of situations, which law
should the employer be required to obey, the NLRA under the
Board's reasoning in Fresenius or Title VII under the Civil
Rights Act? Which law better protects employees?
Ms. Block. Thank you for the question, Senator. Again, I
want to be careful because, as you noted, the cases that I
participated in before could come back to the Board if I'm
fortunate enough to be confirmed, and I would have to look at
them again, and I would want to keep the pledge that I just
made, keeping an open mind. So discussing these issues outside
of the particulars of Fresenius--because I do think, one, that
decision speaks for itself certainly better than I can relate
my reasoning to you sitting here now a year or so later.
But, I think that what you touched on is a case of--it
involves competing interests, the employer's legitimate
interest in investigating what they perceive as misconduct in
the workplace and the Board's obligation to protect employees
who engage in concerted activities. So, again, without
addressing the particulars in Fresenius, things that the Board
will traditionally look at to balance those interests are
whether the employer has tolerated that kind of behavior in the
past, and the Board, on the particular issue of employees not
being truthful about their protected activity--that's a Board
doctrine that had existed for a long time, and the Board has
found ways to balance those interests with employers'
perception of their responsibilities under Title VII.
These cases bring to the Board a need to look at the
particular facts and circumstances, what's the history of how
the employer has dealt with similar situations in the past, and
to figure out how to make those two interests balance.
Senator Hatch. Mr. Chairman, my time is up.
The Chairman. Thank you, Senator Hatch.
Senator Casey.
Statement of Senator Casey
Senator Casey. Mr. Chairman, thank you very much.
Ms. Block, we're grateful you're here and grateful for your
service. Just by way of a brief statement on the question of
your remaining in the aftermath of a circuit court decision, I
would argue that there are at least four reasons, either
individually or conjunctively, that would warrant you staying.
First, there was an outstanding matter that had not been
resolved by the Supreme Court. Second, you did take an oath of
office which is a grave, serious decision. Third, if you
resigned and Mr. Griffin did as well, there would be no
functioning quorum. And, fourth, there is precedent for a
member remaining in the aftermath of an adverse circuit court
decision. I would argue for all those reasons that your
decision was appropriate.
I wanted to talk to you about two issues. One is your
previous experience and, two, more generally, public service. I
think often we might need a little reminder around here about
the origins of the National Labor Relations Act, the findings
that undergirded the statute. I was reading from the findings
today, and I'll read in pertinent part, because I think it
bears repeating.
One of the findings says as follows,
``Experience has proved that protection by law of the
right of employees to organize and bargain collectively
safeguards commerce from injury, impairment, or
interruption, and promotes the flow of commerce by
removing certain recognized sources of industrial
strife and unrest.''
Then it goes on to say a similar thing that relates to labor
practices that would hurt the free flow of commerce.
So you have the Act, the statute, focused on the question
of the free flow of commerce and also the constitutional right
to associate. That's what we're talking about here in terms of
the Act that we're debating. I think sometimes the unfortunate
reality is that some people in Washington don't agree with the
Act. They might disagree with the interpretation of the Act or
recent decisions, but some of them seem to have a real problem
with the National Labor Relations Act itself. At least, that's
my reading of some of the reaction.
But I wanted to raise something with you. You said in your
testimony--and I'm quoting it from the last page of the
testimony--talking about, ``the important lessons I learned
from participating in this committee's work on the MINER Act.''
And then you go on and talk about working across the aisle.
I had a hearing as the chairman of a subcommittee,
Employment and Workplace Safety, about the problem we're having
with getting miners their benefits in a timely fashion. It's
the ultimate manifestation of justice delayed is justice
denied. So we had an important hearing here, one of the few
hearings involving miners in a long, long time. But I wanted to
ask you about your experience working on the committee in the
context not just of that Act, but working across the aisle.
Ms. Block. Thank you, Senator, for the question. It is a
fond memory that I have of working on this committee,
generally, for Senator Kennedy but also, in particular, having
had the privilege to work with the committee on the MINER Act.
I think it was an example of what this committee does best in
terms of that great tradition of moving important bipartisan
legislation.
There are a few sort of big lessons that I learned. The
first is the value of considering the perspectives of all
stakeholders. In the mining community, mining issues, as you
all know, are interesting in that there are very defined
stakeholders, and you just can't get anywhere not listening to
all of the stakeholders and only engaging with one side, and I
thought that was something that the committee did very well and
together.
Also, the necessity of finding practical solutions. To have
big grand ideas about things might sort of be fun, but when
you're talking about what goes on in a mine, you have to be
very practical. You have to really think it through. Is the
solution that you're coming up with something that's actually
going to work for those people who are going to be affected by
what you do. That was a big part of what we struggled with,
again, together to figure out whether these new requirements
are going to make sense underground in a mine.
And, finally, and I think maybe especially for my service
on the Board, the most important lesson I learned was the
virtue of principles compromise, which I think was a lesson
that Senator Kennedy taught particularly well. But as I talked
about when I was here last summer, I know from being privy to
the negotiations that went on that neither side got everything
they wanted in that bill.
But it was important in light of the context in which the
impetus for negotiating the bill--a terrible tragedy that
revealed the fact that things needed to be better. It was just
vitally important, and Senator Enzi, Senator Isakson, Senator
Murray, and Senator Kennedy told us to get something done. And,
again, it just would have been a tragedy to hold out for
everything and not take the opportunity to get something done.
So I think that virtue of principle compromise was really the
most important lesson that I've learned and I've tried to take
with me.
Senator Casey. Thanks very much. Thanks for your commitment
to public service.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Casey.
Senator Scott.
Statement of Senator Scott
Senator Scott. Thank you, Mr. Chairman.
Ms. Block, thank you for being here with us this morning,
and we've heard--not well, because we can't hardly hear you,
but I'm sitting in a position where I can, at least, and I also
know that you and I will probably, hopefully respectfully,
disagree on a number of issues as we have in the past, and I
have a feeling that we'll continue to disagree on those issues
in the future.
But I don't believe that it's the Act that we do not like.
It's the lack of common sense that really seems to be a
challenge from my perspective in looking for, as you said, the
very practical solutions to some of the challenges that we face
and seeing the NLRB as an arbiter, an unbiased, impartial
arbiter.
In reading your statement, one of the quotes I like is,
``Although my expertise is in labor law, not
constitutional law, as a lawyer, I have an unwavering
respect for our judicial process in resolving difficult
legal issues,'' like those involved in the case that
you are referring to.
And, certainly, we both know that the five-member Board is
supposed to be a Board that is fair and unbiased. It seems to
me that over the last several years, and certainly during the
time that you were on the Board, it seems to have tilted in the
direction of just being more of a pro-union Board as opposed to
a fair, unbiased Board.
I highlight the comments--referring to another case--made
by U.S. District Judge Arthur Schwab in speaking about the NLRB
subpoenas and the UPMC documents. He said,
``The court has never seen a document request or
subpoena of such a massive nature. The requests seek
highly confidential and proprietary information that
has little to do with the underlying labor dispute''
and ``arguably moves the NLRB from its investigatory
function and enforcer of Federal labor law to serving
as the litigation arm of the union and a co-participant
in the ongoing organization effort of the union.''
It appears to me that the sense that I've read from the
judge is consistent with the direction in which I have great
concerns about the NLRB heading. I'd love to hear your comments
on how that will be different this time around if you're on the
Board. And I will note just one example that really causes me
to scratch my head--and I would pull my hair out, but as you
can see, I've already done that serving in Congress--and that
is the Karl Knauz Motors BMW case from 2012 where you all
struck down a courtesy rule.
Let me read that rule, because if we're looking for a very
practical, common sense courtesy rule, here it is. It simply
says,
``Courtesy is the responsibility of every employee.
Everyone is expected to be courteous, polite, and
friendly to our customers, vendors, and suppliers, as
well as to their fellow employees. No one should be
disrespectful or use profanity or any other language
which injures the image or reputation of the
dealership.''
The Board found this rule unlawful. I can't get my arms around
that decision.
Ms. Block. Senator, thank you for the question. I
appreciate the opportunity to continue this conversation about
this issue. I do want to be careful, though, because, as I said
previously, to the extent that we discuss cases that I
participated in before that could be before the Board again, if
I were fortunate enough to be confirmed, I want to be careful
not to offer opinions that would suggest that I didn't have an
open mind if the parties chose to come back to the Board.
But on this issue, in general, about courtesy rules, I
certainly agree, and I hope that most people would agree that
employers and employees have an interest in having a courteous,
professional workplace with proper decorum. And I think, in
general, these cases can be very fact specific, but they do
present, again, as most cases that come before the Board do, or
often do, competing interests.
Employers certainly have a legitimate interest in being
able to maintain that professionalism and decorum in the
workplace. Employees have interest in being able to discuss
their concerns about the workplace with each other and the
public. So these cases, again, come down to trying to see how
those competing interests work out. My memory of the Board's
cases, though, is that the Board does try to draw a line to the
extent that the rule deals strictly with professionalism and
decorum, that those rules don't create that conflict.
Senator Scott. Let me ask you just a quick question. I know
my time is about done. Five minutes isn't what it used to be.
The Board found this rule unlawful, contending that
employees would reasonably believe that it prohibited
statements of protest or criticism of the employer. My question
is: Please help me understand how, pray tell, does that
courtesy rule somehow infer that it would be inappropriate for
folks to stand in opposition to something that they didn't
believe in while the rule specifically and clearly states the
desire for a professional environment where coarse language and
respect for others was the only objective.
Ms. Block. Again, I want to be careful about not commenting
on the facts of that particular case.
Senator Scott. How about just the thought process put into
making the decision as it relates to why a courtesy rule is
somehow not courteous?
Ms. Block. Again, I think what the Board looks at is does
the rule extend beyond simply requiring courtesy and
professionalism in the workplace and instead extend to behavior
that would be perceived by the employees as limiting their
ability to speak frankly and honestly about their concerns
about their terms and conditions of employment, and that's an
area that's protected by the Act.
Senator Scott. Let me just close my comments by suggesting
that a courtesy rule asking the employees to be responsible
with their conversation and respectful to one another and not
to use profanity toward one another somehow doesn't seem to
fall into the category that we are talking about today. I'll
finally say that there are just a number of other indicators
that give me reason to pause and be concerned for the lack of
an equilibrium on the Board and during the time in which you
served on that Board as well. Thank you very much.
The Chairman. Thank you, Senator Scott.
Senator Isakson.
Statement of Senator Isakson
Senator Isakson. Thank you, Mr. Chairman.
I appreciate you mentioning the MINER Act because we worked
on that together, and I think it's a good example of what's not
true right now in terms of the labor management conundrums that
we have in Washington. But in the MINER Act, Senator Kennedy
and Senator Enzi operated under the 80-20 rule. They didn't
rush to judgment, but they tried to find common ground on the
problem.
As it turned out, the unions were immediately blaming the
management for shortcomings causing the explosion. Management
was overly defensive of itself. The committee didn't rush to
judgment. And as it turns out, after months of investigation, a
lightening strike that hit an underground cable that had been
abandoned was the cause of the explosion.
The MINER Act, instead of rushing to judgment, ended up
bringing about new standards in terms of re-breathers and
equipment that would be available in the mine for the safety of
miners, but didn't create an enemy out of management or an
enemy out of labor. It approached the situation based on the
problem at hand after it had all the facts.
Use that as a preface to my first question, which I'm going
to try and ask in a way that you can answer without prejudicing
yourself on a future decision. Do you think the general counsel
for the Department of Labor should opine on a decision with a
similar decision pending before the NLRB, meaning should the
general counsel make law themselves while a question before the
NLRB is pending and not yet decided?
Ms. Block. I'm sorry. I'm trying to follow that. The
general counsel--are you saying at the Department of Labor or
at the NLRB?
Senator Isakson. At the NLRB.
Ms. Block. Whether the NLRB general counsel should opine on
an issue that will ultimately be before the Board?
Senator Isakson. There's a similar case pending before the
Board, and they go ahead and opine on another case before it
gets to the Board, but it's the same question.
Ms. Block. The general counsel, as a party before the
Board, will always put forth their theory of the case. So in
the way that the Board system works, I think that the general
counsel always has to act first. I guess if your question is
going more to whether to continue to subsequently pursue the
same theory before the Board has had a chance to act on the
question, again, that's, I guess, a strategic decision that the
general counsel has to make. Until the Board resolves an issue,
the general counsel obviously can't know whether those
subsequent decisions will stand up or not.
Senator Isakson. What I'm referring to, specifically--and I
know you probably will take an out on this, and I respect that
because of what may or may not happen. But the general counsel
opined on a case involving McDonald's that the employees of a
franchisee were equal employees of the master franchisor,
meaning that a McDonald's franchise employee is also an
employee of McDonald's Corporation, which is a joint employer
relationship, which is a sea change in terms of the way that
we've ever looked at franchise or franchisee and
responsibility. At the time they made the McDonald's case
ruling, the Browning-Ferris Industries case, a Pennsylvania
company, is still before the NLRB on exactly the same question,
a question that represents a sea change in the treatment of
master franchisors and franchisees and will have a dramatic
effect on business.
I traveled the State the month of August going to most
every major MSA in my State and a lot of smaller ones as well.
In Columbus, GA, I ran into a franchisee of McDonald's
Corporation that has 23 franchise stores. This opinion is going
to threaten to put him out of business, raise the cost of his
business to be a non-competitive environment, and all over a
decision that was made by a general counsel in the absence of a
final decision by the Board that's pending in another case
which is the exact same question.
So my point is when you prefaced your remarks earlier about
referring to the MINER Act, if we would blow a time-out at the
NLRB and look for the 80 percent common ground and look for all
the facts before we do harm, we would be a whole lot better off
in those relationships between management and labor.
I think the problem we have in the country right now is a
skewed attitude on management and labor. One side favors labor
and one side favors management, and it's almost like a contest
to see who can play ``gotcha'' first. So I'm not going to ask
you to answer a question because that's a pending decision. But
it's a very serious decision for the health and future of the
American economy, and I hope that the Board will be very
judicious in what they decide to do on that case.
Thank you, Mr. Chairman.
The Chairman. Senator Warren.
Statement of Senator Warren
Senator Warren. Thank you, Mr. Chairman.
Welcome, Ms. Block. It's good to have you here. You're
being nominated to fill the Board seat that Nancy Schiffer will
leave in December.
Before I begin with my questions, I just want to take a
minute to acknowledge Ms. Schiffer and thank her for her
service. Her intelligence and dedication to the work of the
NLRB has served our country well, and we are all grateful. I am
pleased now that with Ms. Block, we will have a qualified
nominee to take over and to keep up the good work.
Ms. Block, I have heard some of my colleagues across the
aisle attack you for accepting a recess appointment. However,
over the past 35 years spanning three Democratic Presidents and
three Republican Presidents, there have been 29 recess
appointments to the NLRB, 16 Republican nominees and 13
Democratic nominees.
The President of the United States asked you to serve your
country by joining the NLRB, and your first appointment was
consistent with this long, bipartisan tradition of recess
appointments. Later, when the D.C. District Court decision came
out advancing a split among the courts, you and other members
of the Board followed the longstanding NLRB policy and waited
for the Supreme Court to resolve the conflict that existed
among the courts.
Can you explain why the NLRB has this policy of waiting for
the Supreme Court to resolve disputed decisions reached by the
circuit courts?
Ms. Block. Thank you, Senator. I think it just comes from
an understanding of how our Federal court system works. Again,
Noel Canning was a constitutional issue, but the context in
which I'm more familiar is just when the Board issues
decisions, the Board issues those decisions for the country as
a whole, not for particular geographic areas.
And it can happen that there are splits in the circuits.
The circuit courts sitting in different parts of the country
can come to different conclusions. We know that the way our
Federal court system works is whether it's an interpretation of
the National Labor Relations Act, even more importantly when
it's a constitutional question, the Supreme Court is the
ultimate arbiter of those questions.
Senator Warren. So in your particular case--but this is
part of longstanding tradition with the NLRB--we waited for the
resolution in the dispute among the circuits about what the
appropriate rule was in this case on recess appointments, and
when the Supreme Court spoke to it, then we knew what the law
was. Is that a fair statement?
Ms. Block. Yes, absolutely, and, obviously, I left the
Board before the Supreme Court ruled. But, as I mentioned in
answer to the first question that Chairman Harkin asked, it was
important to me, and I did know that that process was moving
forward throughout the entire tenure that I had on the Board,
that after the Noel Canning decision came out from the D.C.
Circuit, the solicitor general filed a petition for certiorari
ensuring that the process toward resolution would continue to
move in that direction.
Senator Warren. Good. I just want to say thank you for your
willingness to serve and thank you, in particular, for your
willingness to serve at the NLRB so that we can have a Board
that fairly represents the people of this country.
I have one other question I'd like to ask you about, and
that is about scheduling. Unpredictable and last-minute
scheduling is a very serious problem for a lot of low-income
and part-time workers. Many of these workers want a full time
job with stable hours, but many jobs today, particularly in
service and retail industries, are part-time, or if they are
full time, they're often on shifting schedules.
When work schedules are more stable and more predictable,
families experience greater economic security and they're
better able to plan for child care and for other family
obligations. But I've met with employees who have been
retaliated against solely for asking for more stable schedules,
not demanding, just asking for some scheduling help to attend a
college course or to manage child care obligations.
So I am pleased to have joined Chairman Harkin in
introducing the Schedules that Work Act. This is a bill that
would guarantee that all employees could request certain
scheduling free of retaliation. It would also discourage last-
minute scheduling while still giving employers flexibility to
make changes based on their business needs.
I understand that it is Congress' job to write the laws,
and the NLRB's job to enforce the rules. But with scheduling
practices as a growing area of concern, I wanted to ask you if
the NLRB has been involved in settling disputes on scheduling
issues, and if you might just help inform us a bit about this
issue.
Ms. Block. Thank you for the question. The Board has long
been involved in these kinds of issues as a result of them
being important to employees and employees joining collectively
to ask their employers to address the issue.
Clearly, scheduling is a critical aspect of an employee's
terms and conditions of employment, and the National Labor
Relations Act gives employees the right, either through a
collective bargaining representative, if the employees choose
that vehicle for expressing their collective action, or just
through protected concerted activity to raise concerns about
terms and conditions of employment. The Act does, in fact, give
a way for employees to express those concerns, share them with
employees in a manner that's protected.
Senator Warren. Thank you very much. I understand that
securing a predictable work schedule is one of the reasons that
workers often decide to unionize. I hope to continue to work
with Senator Harkin to advance our bill so that some
flexibility and some sensibleness is appropriate and available
to all workers in the case of trying to make reasonable
schedules.
Thank you very much, Ms. Block. I'm looking forward to
seeing you on the NLRB.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Warren.
Before I yield to Senator Alexander, I want to kind of
clear up something that I keep hearing come up, and that is I
think there's a confusion in some minds about the general
counsel of NLRB. Usually, when you hear of the general counsel
to the Department of Agriculture or the general counsel to
Veterans Affairs, you think of them as the advisers to that
entity, that that's their lawyer.
But that's not true under the NLRA. People have to
understand that when you talk about the general counsel--maybe
we have to have a different name for that person. That person
is really sort of the prosecutor in some ways, and they take in
the information on the cases that come to them, and they
present the case to the Board.
The NLRB general counsel is not an adviser to the NLRB.
That's not their lawyer. That general counsel has a different
obligation. I think there's some confusion about how that
works. I heard the question by Senator Isakson and I think some
others that indicate to me that the role of the general counsel
in the NLRB is different than the role of general counsels to
other departments and agencies in the Federal Government, very,
very, very different under the law.
With that, I'll yield to Senator Alexander.
Senator Alexander. Thanks, Mr. Chairman. I only have one
question.
Ms. Block, do you believe that Congress, when it wrote the
National Labor Relations Act, intended that the quarterback at
Vanderbilt University or the women's basketball player at Iowa
State who is on scholarship be considered an employee of the
university?
Ms. Block. Again, Senator, as that is an issue that I think
is likely or may already be pending before the Board, I think
it would not be appropriate for me at this time to give an
opinion. I can assure you, though, that I will look carefully,
if I'm fortunate enough to be at the Board, at the arguments
made by the parties in addressing that issue.
Senator Alexander. May I offer a statement by the Knight
Commission? About 25 years ago, the Knight Commission organized
a group of university presidents and others, including the
president of the University of Tennessee--and I don't know who
that was--but we considered very carefully all the issues of
intercollegiate athletics. And the whole point of the
recommendation of the Knight Commission was that presidents of
the universities should step up and take the responsibility for
the problems--and there always are some problems--with
intercollegiate athletics.
But this is what these presidents said, and they included
some really terrific people--I mean, Father Hesburgh of Notre
Dame, Bill Friday of the University of North Carolina--some of
the finest leaders in higher education in the country.
``We reject the argument that the only realistic
solution of the problems of intercollegiate athletics--
and there always have been some--is to drop the student
athlete concept, put athletes on the payroll, and
reduce or even eliminate their responsibilities as
students.''
The Knight Commission went on to say,
``Such a scheme has nothing to do with education, the
purpose for which colleges and universities exist.
Scholarship athletes are already paid in the most
meaningful way possible with a free education. The idea
of intercollegiate athletics is that the teams
represent their institutions as true members of the
student body, not as hired hands. Surely, American
higher education has the ability to devise a better
solution to the problems of intercollegiate athletics
than making professionals out of the players, which is
no solution at all, but rather an unacceptable
surrender to despair.''
That was the Knight Commission on intercollegiate athletics
25 years ago. I would hope very much that should you be a
member of the National Labor Relations Board, you will take
into account those opinions. Student athletes are not employees
of a university. Student athletes--for example, universities
are taking steps to deal with the various problems, which
include the money that athletes may have to spend. Student
athletes, like other students--about half of them if they're
low-income--are eligible for a Pell grant in addition to their
student scholarship.
I was a student athlete without a scholarship at Vanderbilt
University, and there are enormous advantages to the privilege
of being a student athlete. So I would hope the NLRB would
reject what I consider to be a fairly preposterous claim that
Congress, when it talked about employees, had in mind student
athletes. And I would respectfully suggest the 2-year
deliberations of the Knight Commission to you and anyone else
who might be a member of the National Labor Relations Board.
Mr. Chairman, I have no other comments.
The Chairman. Thank you very much, Senator Alexander.
Ms. Block, thank you again for your appearance and for your
forthright answers to our questions.
The record will remain open for 10 days. If there are
additional questions or questions by any Senators, I ask that
those be submitted by this Friday before close of business here
in the Senate.
Again, thank you, Ms. Block. We look forward to getting
your nomination before the Senate in due order so that we can
continue after December with a full NLRB.
With that, the committee will stand adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Response to Questions of Senator Alexander, Senator Isakson, and
Senator Scott by Sharon Block
senator alexander
Question 1. Do you think NLRB decisions that are de facto invalid
by the Supreme Court's Noel Canning decision should be given priority
over the Board's new cases or over finalizing the Board's other
business, for example, the proposed representation-case procedures
rule?
Answer 1. I am aware that Chairman Pearce issued a statement
following the decision affirming the Board's commitment to resolving
any cases that may have been impacted by Noel Canning as expeditiously
as possible. If I am fortunate enough to be confirmed, I would share my
colleagues' commitment to resolve these cases as expeditiously as
possible. I am not privy to the Board's intended process, so I am
unable to comment on the specifics. As a Board member, I would make
efficient case processing a priority.
Question 2a. Do you think the Board should notify the parties to
cases affected by Noel Canning that the Board's decisions have been
invalidated? If yes, how would you propose doing so? If no, please
explain why.
Answer 2a. I believe that the Agency should be transparent in its
operations. I am not privy to the Board's intended process for dealing
with cases that may have been impacted by the Supreme Court's Noel
Canning decision. However, following the Supreme Court decision in New
Process Steel, I am aware that the Agency included a list of cases
impacted by the decision on its public website. I believe that promoted
transparency. If I am fortunate enough to be confirmed to the Board, I
look forward to discussing with my colleagues additional steps that
could be taken to promote transparency.
Question 2b. Do you think those parties should have a time limit on
how long they have to ask the Board to reconsider their case? Please
explain your answer.
Answer 2b. I am not privy to the Board's intended process. I do
believe that some reasonable time limit may be appropriate to ensure
that parties involved are assured a final resolution of their dispute.
Question 3. Do you think the Board should inform the public, and in
particular those parties impacted, about how it plans to process the
cases invalidated by Noel Canning? If yes, how would you propose
processing the cases? If no, please explain why.
Answer 3. Again, I believe that the Agency should be transparent in
its operations. I am not privy to the Board's intended process for
dealing with cases that may have been impacted by the Supreme Court's
Noel Canning decision. If I were fortunate enough to be confirmed to
the Board, I would look forward to discussing with my colleagues an
efficient, effective, and transparent process.
Question 4. Do you think the Board should allow new briefs to be
filed in the invalidated cases that are going to be reconsidered?
Please explain why or why not.
Answer 4. I am not privy to the Board's intended process for
dealing with cases that may have been impacted by the Supreme Court's
Noel Canning decision. However, I am aware that following the Supreme
Court's decision in New Process Steel, the Board did not permit the
filing of new briefs as to the matters that had been fully briefed
during original consideration, but did permit parties to bring to the
Board's attention any relevant new authority that issued since the time
of the initial decision. I believe that was an appropriate process.
Question 5. In how many of the 436 decisions that are de facto
invalid by the Supreme Court's Noel Canning ruling did you participate?
Answer 5. I did not keep a log of cases in which I participated,
nor do I have the list of 436 decisions to which you refer; therefore,
I do not know the number of those cases in which I participated. I
would be happy to work with the National Labor Relations Board's
Congressional Affairs staff to ensure that you receive this
information.
Question 6a. The Board has been criticized for overturning
longstanding precedent. What factors would you consider when deciding
to follow or overturn a Board precedent?
Answer 6a. I have a great deal of respect for the principle of
stare decisis. Stability and certainty in the law are important values.
But there are times when stability and certainty are better served by
re-examining precedent. I believe that reversal of precedent should
remain rare and should always reflect careful consideration. I believe
that it is important to consider whether existing Board law lacks a
clear and coherent rationale and/or where the Board has been directed
by a Federal court to reconsider its approach to a particular legal
issue.
Question 6b. Do you believe that overturning the Board's
longstanding precedent creates uncertainty and confusion for employers
and employees?
Answer 6b. I believe that predictability is an important value
under the law and that reversals of precedent should remain rare and
reflect careful consideration. Reversals of precedent must be
understood in the context of the Supreme Court's observation that
``[t]o hold that the Board's earlier decisions froze the development .
. . of the national labor law would misconceive the nature of
administrative decisionmaking,'' which the Court described as ``the
constant process of trial and error.'' NLRB v. J. Weingarten, Inc., 420
U.S. 251, 265-66 (1975).
Question 6c. Do you agree that the purpose of the National Labor
Relations Act is to create stability in labor relations?
Answer 6c. I believe that the purpose of the National Labor
Relations Act, as declared in the preamble to the Act, is to
``eliminate the causes of certain substantial obstruction to the free
flow of commerce and to mitigate and eliminate these obstructions when
they have occurred by encouraging the practice and procedure of
collective bargaining . . . ''
Question 6d. How does overturning Board precedent help create such
stability?
Answer 6d. Again, I believe stability and certainty in the law are
important values. But, there are times when stability and certainty are
better served by re-examining precedent. I believe that reversal of
precedent should remain rare and should always reflect careful
consideration. I believe that it is important to consider whether
existing Board law lacks a clear and coherent rationale and/or where
the Board has been directed by a Federal court to reconsider its
approach to a particular legal issue.
Question 7a. In your opinion, how much weight and deference should
be given to congressional intent? Should the Board members consider
current policy concerns, or should they solely apply the law as
Congress intended when deciding cases?
Answer 7a. Board members should apply existing law, as articulated
by Congress, impartially to all parties.
Question 7b. When you previously served on the Board, did you weigh
policy concerns when deciding cases, or did you strictly apply the law
as Congress intended?
Answer 7b. I took my role as a neutral adjudicator of the law very
seriously. I strove to understand all sides of a case, to consider
carefully the arguments of every party regarding how the law applies,
and to render a fair decision based solely on the record evidence and
the applicable legal principles.
Question 8. At what point do you believe that a franchisor should
be responsible for unfair labor practices by a franchisee?
Answer 8. Cases involving joint employment are very fact-specific.
This is a complicated area of the law and I would approach it with an
open mind, and with a focus on the specific facts of the particular
case. Because this is an issue that could come before the Board in a
future case, it would not be appropriate for me to address this issue
in substance.
Question 9. If a franchisor is found to be a joint employer with
its franchisees, do you think a union could demand to have collective
bargaining agreements with both the franchisee owner, and the corporate
franchisor?
Answer 9. Again, if I am fortunate enough to be confirmed, this
issue could come before the Board, so it would not be appropriate for
me to address it in substance.
Question 10. If the joint employer doctrine under the National
Labor Relations Act is going to be changed, do you think it would
result in more certainty for interested parties if Congress changed it
or if the NLRB changed it?
Answer 10. Because I cannot know the feelings of interested
parties, I cannot speculate as to which course of action may result in
more certainty for interested parties.
Question 11a. In a book chapter you authored entitled,
``Perspectives from a New Member of the NLRB,'' you opined, ``the web
of rights that we have afforded workers in the country is not without
serious flaws.'' What are the rights contained in the ``web'' you
describe? And what specifically do you believe are the serious flaws in
that ``web?''
Answer 11a. I was referring to the various labor and employment
laws Congress has enacted governing our Nation's workplaces. As
discussed in the chapter, I believe that the lack of protection against
workplace discrimination for members of the LGBT community is a serious
flaw. I also mentioned that many of our worker protection statutes are
outdated and outmoded.
Question 11b. In the same chapter you asserted, ``we should not
expect Congress to change or clarify the legal landscape for workers or
employers any time too soon.'' If you do not expect Congress to change
the legal landscape, do you believe that is an appropriate role for the
NLRB?
Answer 11b. I understand that as a Board member I would be charged
with enforcing the law as it currently exists and not enacting changes
that can only be accomplished by legislation.
Question 12. Four Federal circuit courts have rejected the NLRB's
decision in D.R. Horton, which held that class action waivers in an
arbitration agreement violate the National Labor Relations Act. In the
book chapter referenced above, you wrote, ``[i]t remains to be seen how
D.R. Horton will fare in the courts . . ..'' Now that it is well-
documented that D.R. Horton fared poorly in the courts, do you believe
it is appropriate for the Board to continue to apply it, especially if
the Board does not plan to file cert with the Supreme Court?
Answer 12. Because this is an issue that could likely come before
the Board in a future case, it would not be appropriate for me to
address this issue.
Question 13. In the book chapter referenced above, you state,
``misclassification is one of the most important labor and employment
issues of our time,'' the ``Board . . . has a role to play'' in
resolving this issue and ``the debate engaged [about independent
contractor status] in St. Joseph is an important one for the current
Board to continue.'' If confirmed, do you support the Board changing
the factors it considers to determine employee versus independent
contractor status?
Answer 13. Because this is an issue that could likely come before
the Board in a future case, it would not be appropriate for me to
address this issue in substance.
Question 14. In the book chapter referenced above, you appear to
disagree with the Supreme Court's opinion in Hoffman Plastic Compounds,
which, as you stated, ``held that the Board had no authority to award
backpay to an undocumented worker who--violating immigration law--had
presented fraudulent work-authorization documents to get his job.'' You
argue this decision, from a policy perspective, has ``serious negative
consequences.'' If confirmed, will you abide by the Supreme Court's
precedent in Hoffman or look for ways to distinguish it from other
cases before the Board that involve awarding undocumented workers
backpay?
Answer 14. I have a great deal of respect for the judiciary and
understand that the Supreme Court's decision in Hoffman Plastic
Compounds is the law of the land.
Question 15. During your confirmation hearing, you indicated there
was conflicting reasoning in the Federal courts about whether your
recess appointment was unconstitutional. Please name what Federal court
found President Obama's January 4, 2013, recess appointment of you to
the NLRB constitutional.
Answer 15. The D.C. Circuit itself acknowledged in Noel Canning
that its decision was at odds with the views expressed by the Second,
Ninth, and Eleventh Circuit courts. I was referring to the reasoning
employed by the courts, which was in conflict, not the ultimate holding
of the courts.
Question 16. The NLRB Office of Inspector General and congressional
investigations have uncovered inappropriate ex parte communications
between the Board and the Office of General Counsel in recent years. In
your time on the Board, please describe how you took care to follow the
Board's ex parte rules and how you plan to do so moving forward,
especially in light of the fact that your former colleague on the
Board, Richard Griffin, is now the General Counsel.
Answer 16. I understand that the NLRB has a unique structure.
Agency personnel serve as both prosecutor (the Office of the General
Counsel) and adjudicator (the Board and the Division of Judges) of
unfair labor practice cases. As a result, due process requires that
there be a wall of separation between both sides of the Agency to
ensure the separate and independent nature of these functions. I
understand that the wall is intended to ensure that Agency employees on
the General Counsel's staff who play a role in the investigation and
prosecution of unfair labor practice cases do not discuss confidential
case-related information with employees of the Board who are involved
in the adjudicatory function. With respect to cases that are pending
before the Board, this requirement is codified in Sections 102.126-
102.133 of the Board's Rules and Regulations (Subpart P--Ex Parte
Communications), which prohibit all parties to a case from engaging in
ex parte communications.
I assure you that I fully understand the Agency's rules regarding
ex parte communications and did make every effort to adhere to them
during my prior service and would make every effort to adhere to the
Agency's policies in all of my communications, if I am fortunate enough
to be confirmed.
Question 17. If confirmed, will you commit to cooperating with
congressional oversight of the NLRB, including document requests, and
to work with the NLRB Office of Inspector General and Government
Accountability Office in any studies/investigations that they may
undertake?
Answer 17. If confirmed, I would make every effort to cooperate
with congressional oversight of the NLRB and to work with the NLRB
Office of Inspector General and Government Accountability Office in any
studies/investigations they may undertake.
Question 18. If confirmed and you are asked to personally meet with
Members of Congress or their staff, are you willing to do so?
Answer 18. If confirmed, I would make every effort to, when
requested, personally meet with Members of Congress or their staff.
Question 19. Please describe in detail your role in preparing or
approving responses to congressional inquiries during your time serving
as Senior Counselor to Secretary of Labor, Thomas Perez. Have you ever
advised against providing Congress with the information they requested?
If yes, please describe the background of such requests and your
reasoning for advising the Secretary to withhold the requested
information.
Answer 19. The Department of Labor's Office of the Executive
Secretariat, in coordination with the Office of Congressional and
Intergovernmental Affairs, manages the process of responding to
congressional inquiries. As a part of the standard Departmental
clearance process, staff from a number of agencies--including the
Office of the Secretary--are afforded the opportunity to review
correspondence. The clearance process is designed to ensure that
information provided to Members of Congress is both accurate and
responsive.
senator isakson
Question 1. Recently, the NLRB's General Counsel issued an opinion
that McDonalds's Corporation is responsible for the employees of their
independently operated franchisees. This opinion changes decades of
legal precedence harming the very essence of the American franchise
business model--that is the independence of the franchisees to run
their own business. I recently heard from my constituent, who owns 23
franchised restaurants. He was petrified of what a joint employer
ruling would do to the business he has grown from one store to 23
stores. I have two questions: Do you think the General Counsel should
be ``making'' law on his own prior to the Board decision on the
Browning Ferris case? Do you understand the effects a joint employer
relationship will have on independent franchisees--the loss of their
business and any of their established equity? I think it is important
to hear from you on what you believe a joint employer relationship is.
Answer 1. Because this is an issue that could likely come before
the Board in a future case, it would not be appropriate for me to
address this issue in substance. I can say that this is a complicated
area of the law and I would approach it with an open mind.
Question 2. In the Specialty Healthcare decision, the NLRB reversed
the long-standing precedent for establishing a traditional bargaining
unit. This board decision now allows for labor organizations to cherry
pick certain employees within a workplace in order to gain access to
those places of work. This can obviously create conflict within the
workplace amongst employees, impossible management hurdles for
employers who could potentially have to deal with multiple collective
bargaining contracts within the same workplace, and ultimately affect
American consumers who benefit from the products and services from so
many of these workplaces. Do you support this new ``same work, same
facility'' test despite it not having been developed through any
transparent rulemaking process?
Answer 2. Because this is an issue that could likely come before
the Board in a future case, it would not be appropriate for me to
address this issue in substance. If I am fortunate enough to be
confirmed to the Board, I will examine these issues with an open mind
and carefully consider the facts of the case, the viewpoints of my
colleagues, career Board staff and the parties, and apply the law in a
fair and honest manner.
senator scott
Question 1a. The Board under the current Administration has
embarked on truly unprecedented rulemakings and issued a multitude of
decisions that seem to be solutions in search of a problem. In your
opinion, has the confluence of the decline of private-sector
unionization to 6.7 percent and the defeat of card check prompted the
NLRB to serve as the vehicle for mitigating these losses?
Answer 1a. No.
Question 1b. Is there an expectation on behalf of union
organizations that the Board, particularly the Democrat members, should
act in this way?
Answer 1b. If I am fortunate enough to be confirmed to the Board, I
can assure you that I will uphold my oath to administer the National
Labor Relations Act in a fair and impartial manner, consistent with the
requirements of the Act. I cannot speak to the expectations of others.
Question 2a. Many of the decisions issued during your tenure on the
Board noticeably tilt the playing field toward organized labor. Some of
these include WKYC-TV, Gannet Co., Inc. (08-CA-039190); Alan Ritchey,
Inc. (32-CA-018149); Hispanics United of Buffalo (03-CA-027872); Karl
Knauz BMW (13-CA-046452); and Fresenius USA Manufacturing (02-CA-
039518).
In the Knauz case, the Board found a commonsense courtesy rule to
be unlawful. While the decision in this case does not ban courtesy
rules, it clearly has far-reaching impacts. Do you stand by your
decision in this case?
Answer 2a. The decision in the Karl Knauz case speaks for itself.
The Board found a handbook statement encouraging ``courteous, polite,
and friendly'' behavior to be lawful. It found a statement that
prohibited ``disrespectful'' conduct and ``language which injures the
image or reputation'' of the employer to be unlawful because employees
could reasonably think that those prohibitions would cover activity
protected by the National Labor Relations Act.
Question 2b. Please explain how an employee could perceive this
courtesy rule as infringing on their rights.
Answer 2b. Again, the Karl Knauz decision speaks for itself. The
Board found a handbook statement encouraging ``courteous, polite, and
friendly'' behavior to be lawful. It found a statement that prohibited
``disrespectful'' conduct and ``language which injures the image or
reputation'' of the employer to be unlawful because employees could
reasonably think that those prohibitions would cover activity protected
by the National Labor Relations Act.
Question 3a. The Board's decision in Specialty Healthcare, along
with subsequent cases that upend board precedent to allow the
gerrymandering of bargaining units, will have major consequences on
employees and employers.
Why did the Board expand the Specialty Healthcare decision to
industries beyond non-acute health facilities?
Answer 3a. I was not on the Board when it issued its decision in
Specialty Healthcare. I was not privy to the Board's reasoning other
than what is in the decision itself.
Question 3b. Commonsense says that the creation of ``micro-unions''
could lead to perpetual contract negotiations and strike threats as
well as acrimony amongst employees. How is this good for our economy
and labor relations?
Answer 3b. The Board's obligation under Section 9 of the Act is to
determine whether a petitioned-for unit is an appropriate unit. If I am
fortunate enough to be confirmed, I would do my best to carry out this
obligation in a fair and unbiased manner.
Question 3c. Do you agree that micro-unions could restrict the
cross-training of employees and thus career advancement?
Answer 3c. The Board's obligation under Section 9 of the Act is to
determine whether a petitioned-for unit is an appropriate unit. If I am
fortunate enough to be confirmed, I would do my best to carry out this
obligation in a fair and unbiased manner.
Question 3d. How many decades of precedent were overturned in
Specialty Healthcare?
Answer 3d. Again, I was not on the Board when it issued its
decision in Specialty Healthcare. In the Specialty Healthcare decision,
the Board states that it ``return[ed] to the application of our
traditional community of interest approach in this [nursing home]
context'' and overruled Park Manor Care Center, a case decided in 1991.
Question 3e. Would you deem as few as two employees as an
appropriate bargaining unit in any circumstance? Please provide a yes
or no response.
Answer 3e. Yes, if a petitioned-for unit of two employees otherwise
met the test for an appropriate bargaining unit, I would find such a
unit appropriate, as the Board has throughout its history. See, e.g.,
Tennessee Valley Broadcasting Company, 73 NLRB 1509, 1510 (1947) (units
of all regular staff announcers and all radio technicians--each
composed of two employees--constitute two separate appropriate units).
Question 4a. In 2012, you said that your driving motivations for
being a labor lawyer would inform your thinking about cases and issues
before the Board. Do you believe that your past work experiences and
motivations will hamper your ability to be an unbiased arbiter should
you return to the Board?
Answer 4a. No.
Question 4b. Do you believe that your previous record at the Board
reflects that of a neutral arbiter?
Answer 4b. Yes.
Question 4c. U.S. District Judge Arthur Schwab recently remarked
that the overly broad scope of requests from the Board in NLRB v. UPMC
``arguably moves the NLRB from its investigatory function and enforcer
of Federal labor law, to serving as the litigation arm of the Union,
and a co-participant in the ongoing organization effort of the Union.''
In light of this assertion and similar findings by other courts, do you
agree that the Board must act in a more impartial manner to avoid
further damage to its reputation?
Answer 4c. If I am fortunate enough to be confirmed, I would take
my role as a neutral arbiter very seriously and would conduct myself in
a fair and impartial manner. I believe that the current Board members
share this commitment.
Question 5a. For 30 years, under its joint-employer standard, the
NLRB has taken the position that one business cannot be held liable for
the unfair labor practices of another business unless that business had
direct control over the employees in question. However, the NLRB is
attempting to alter this long-standing standard, which will create
immense uncertainty in the business community and further tilt the
playing field in favor of big labor and their organizing efforts.
In light of the General Counsel's recent decision to ignore this
established standard and authorize McDonald's USA, LLC to be named as a
joint employer, how do you think this classification of a franchisor as
a joint employer will affect the economy and the general business
environment?
Answer 5a. Because this is an issue that could likely come before
the Board in a future case, it would not be appropriate for me to
address this issue in substance. I can say that this is a complicated
area of the law and I would approach it with an open mind.
Question 5b. Do you believe that this classification would be
isolated solely to McDonald's, or would it impact a variety of
businesses that use similar models, including real estate agencies,
insurance companies, and car dealerships?
Answer 5b. Again, this is an issue that could likely come before
the Board in a future case, so it would not be appropriate for me to
address this issue in substance.
Question 5c. In your opinion, what impact would this joint employer
classification have on union organizing efforts in industries like the
fast food sector?
Answer 5c. Again, this is an issue that could likely come before
the Board in a future case, so it would not be appropriate for me to
address this issue in substance.
Question 5d. In August, the California Supreme Court ruled that
Domino's Pizza LLC was not liable for alleged sexual harassment at one
of its franchises because the company is not sufficiently involved in
the hiring, firing, and supervision of employees to warrant liability.
Do you think this decision and others will give the General Counsel's
office pause?
Answer 5d. I am not familiar with that decision.
Question 5e. If confirmed and presented with this issue before the
Board, would you lend credence to the courts' opinions on the joint
employer standard?
Answer 5e. If confirmed, I will take my role as neutral arbiter
very seriously. I will work to understand all sides of a case, to
consider carefully the arguments of every party, and to render a fair
decision based solely on the record evidence and the applicable legal
principles.
Question 5f. Knowing that this issue is a priority of Administrator
Weil's, do you have any preconceived notions on the joint employer
issue due to your work at the Department of Labor?
Answer 5f. I do not have preconceived notions with regards to the
joint employment issue. Again, if I am fortunate enough to be
confirmed, I will approach each case before me with an open mind.
Question 5g. Have you assisted the Department in developing
priorities or policies pertaining to this issue?
Answer 5g. Staff from the Office of the Secretary is afforded the
opportunity to review agency priorities and policies on a range of
issues. I was one of many individuals at the Department of Labor who
reviewed the Wage and Hour Division Administrator's Interpretation
(2014-2) and fact sheet to help potential joint employers of home care
workers determine their obligations under the Fair Labor Standards Act.
[Whereupon, at 11:15 a.m., the hearing was adjourned.]